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Unformatted text preview: Public Law II: Jan 11 2008 The Road to the Charter • 1968: Trudeau became PM. He wanted: – – – – stronger federation patriation of constitution Const. Charter of Rights betterprotected language and mobility rights • 1971: Victoria Charter – agreement for Charter and patriation. – opposed in the end by Quebec and Alberta • 1976: PQ elected in Quebec • 1980: Referendum – Trudeau promised renewed federalism • 1981: – negotiations; no agreement – “unilateral” patriation attempt – reference to 3 Prov Cts of Appeal; appeal to SCC – SCC Ruling: • legal, but breaks convention – Nov. 1981 const conference • compromise November 1981 compromise • Patriation of constitution with the amending formula favoured by most of the premiers (the 7 50 formula), but which Trudeau had opposed • acceptance of a constitutional Charter of Rights which would contain a “notwithstanding” (non obstante) clause • Trudeau insisted that the notwithstanding clause not cover language rights, minority language education rights, or mobility rights; notwithstanding clause would have a 5year limit The Charter of Rights became law April, 1982 http://laws.justice.gc.ca/en/const/annex_e.html#I • 1. Limitations clause • 2. Fundamental freedoms: – conscience and religion – thought, belief, opinion & expression – press and other media – peaceful assembly – association • 35: Democratic rights: – citizens right to vote and run for office – 5 yr limit to life of H of C or prov. Assembly except during war etc. if supported by 2/3 vote – sitting of Parliament, and prov. Legislatures, at least every 12 months Mobility and Legal Rights • 6. Mobility rights – 1. to enter, remain, leave – 2. to move within Can. and pursue livelihood, subject to laws that don’t discriminate and residency provisions, and restrictions in provinces of high unemployment • 714 Legal rights: eveything in Bill plus – freedom from unreasonable search or seizure (s. 8) – trial within reas time – jury trial if liable to 5 years imprisonment – no retroactive offences – no double jeopardy – least punishment if law varied Equality and Language • 15 Equality before and under the law – without discrimination based on race, national or ethnic origin, colour, religion, sex, age, mental or physical disability – Affirmative action programmes OK • 1622: Language – supplements S. 133 of CA, 1867, which is still in effect – applies to Canada (fed) and New Brunswick only, though other prov’s can opt in – Eng & Fr “official langs” – Debates, statutes, Hansard in 2 langs – Eng or Fr can be used in courts – right to receive services or communicate in English or French with gov’t Minority Lang Education, remedies • 23: Minority lang ed – citizens whose first lang is Eng or Fr, or who attended prim school in Eng or Fr, have right to educate children in that lang. – Siblings rights – applies where numbers warrant • 24: remedies – (1) “...such remedy as the court considers appropriate” – (2) evidence may be excluded if its collection violated a right, if admitting it “would bring the administration of justice into disrepute” General • 25: aboriginal and • 27: multicultural treaty rights not heritage of Canadians reduced by charter, to be kept in mind including rights under when interpreting the Royal Proclamation of charter 1763, and land claims • 28: equal guarantee to agreements males and females (this section isn’t covered by • 26: other existing the “notwithstanding” rights not reduced by clause)
Charter General (continued) – 29: denominational school rights in CA, 1867 not reduced – 30: Territories included, now and later – 31: Charter does not extend legislative powers; it is a limit – 32: Application to Parl, legislatures, gov’ts (& 3 year delay for s. 15) – 33: a notwithstanding clause can be inserted into legis. re ss. 2 or 7 15; 5 year limit; can be renewed – 34: ss. 134 of CA, 1982 cited as the Charter of Rights and Freedoms Negative and Positive Rights in the Charter • Negative rights most common part of const. bill of rights: in lib pol theory rights conceived as means of protecting ind from state; rights mark sphere of freedom. • Positive rights signify entitlements citizens might have and which state is obliged to provide. • In Charter most provisions neg rights: fund freedoms, mobility rights, legal rights. • Dem rights could be viewed as positive rts; min language ed rights are positive rights (for select citizens); official bilingualism positive rts. • What about equality rights (sec 15)? Negative or positive? Application and Interpretation Clauses in Charter of Rights • Application clauses in Charter specify in one way or another how Charter is to be applied, e.g.: – Sec 1 (reasonable limits clause) – Sec 24 (enforcement clause) – Sec 32 (application clause) – Sec 33 (notwithstanding clause) Application and Interpretation clauses cont……. • Interpretation clauses designed to give courts guidelines on how Charter is to be interpreted in specific cases, e.g.: – Sec. 25 Aboriginal rights not abridged – Sec. 26 Other rights and freedoms not affected by Charter – Sec. 27 Multicultural heritage – Sec. 28 Equal rights male and female – Sec. 29 Denominational school rights not affected DoucetBoudreau v. Nova Scotia, 2003: example of application of Ss. 23 & 24 • Impugned provision: order of a trial judge to force Nova Scotia to provide secondary schools in the French language, and report on its progress. • Nova Scotia CA: S. 24 doesn’t give judges the power to supervise implementation • SCC: 54 decision: upheld the authority of the trial judge under S. 24(2) • Iacobucci & Arbour for majority of 5: – if delay is tolerated, govt’s can avoid Charter obligations – ordering gov’t to report on progress is a “creative blending of remedies,”and leaves gov’t with discretion as to how to build & provide schools, and their nature • Lebel & Deschamps for minority of 4: – violates separation of powers – reporting order too vague – judges shouldn’t meddle with administration – a deadline for construction, and threat of a contempt order, is enough The Charter and Its Critics • The Charter undermines legislative supremacy & therefore democracy – Hutchinson & Petter: In the Charter vision, the main enemy of freedom is not disparity in wealth or concentration of private power, but the state – MortonKnopff: Judges may be “captured” by special interest groups, mostly on the left. This subverts democracy.
– Charter erodes participatory democracy. Human rights can only be protected by the vigilance of citizens • Cost of litigation compared to the political process – Lavigne case: NCC spent $500,000; unions $400,000 + – Why not use the political process to change laws you don’t like? Charter Critics (2) – Charter litigation focuses attention on cases that happen to get to court, not necessarily most imp issues for society • Courts are inappropriate for making policy on human rights – Stare decisis is backwards looking, compared with the possibility of forwardlooking policy formation processes in public service/legislature – Adversary system • gov’t lawyers argue for a narrow interpretation of Charter, whether or not this is gov’t policy • courts rely on arguments from counsel. Sometimes, no section 1 arguments • Do judges get a complete analysis of the issues? Charter critics (3) – Backgrounds of judges • older than average adult • disproportionately married with children • predominantly male • New Canadians and Aboriginals under represented on bench • most from business or professional family • tend to be successful • appointment process for Prov Courts and prov. Superior courts improving. Elevation procedure, and SCC secretive • Similar problems with lack of representation in legal profession • Why do we tend to trust judges more than elected politicians? • Was the Charter worth the upheaval it took to get it? – Will revisit this question last week of class Knopff & Morton: Charter politics • Do we want judges to be the “official public philosopher?” • Should judges be – “interpretivists” (will of framers a straight jacket) or – “noninterpretivists” (creative, but perhaps against democracy) • The Charter Revolution (1999): – groups with axes to grind have used Charter to subvert democratic process • feminist groups • academics • special interest groups (eg. Canadian Civil Liberties Assoc, gay and lesbian organizations, the gun lobby, NCC) • groups representing “Charter” Canadians (the handicapped, seniors, new Canadians, Aboriginals) Morton and Knopff cont…. • According to M & K, judges have become emboldened by Charter and, with support of what they term “Court Party” (consisting of those who support the idea of an activist court, e.g. certain legal academics, legal professionals, and interest group leaders, etc.), these judges have used Charter to invade sphere of policymaking that rightfully belongs to legislatures. • Groups that use Charter to pursue their interests are generally unwilling to compromise, hence are undemocratic. • Oracular courts increasingly use their special position in the political system to make broad pronouncements about the values of the nation. ...
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